Supreme Court Practice

Gupta Wessler PLLC maintains an active practice before the Supreme Court of the United States. We brief and argue cases before the Court, devise amicus strategies, work with the Office of the Solicitor General, and assist others in preparing their cases before the Court.

We have particularly extensive experience with defeating petitions seeking review of important victories, and are often retained at the petition stage to keep cases out of the Court. Among private firms that focus on the representation of plaintiffs and public-interest clients, our Supreme Court practice is unmatched.

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Recent matters include:

Hernández v. Mesa – Qualified Immunity, Extraterritoriality. In this case, we represented the family of Sergio Hernández, an unarmed Mexican teenager who was shot to death by a U.S. Border Patrol agent. The agent stood on U.S. soil, while Hernández stood just a few feet into Mexican soil. The case raised questions about the Constitution’s extraterritorial application and qualified immunity based on facts unknown to the officer at the time of the incident. Deepak Gupta was counsel of record, along with Jon Taylor and Rachel Bloomekatz; our co-counsel included Bob Hillard and law professors Leah Litman and Steve Vladeck.

On June 26, 2017, the Court issued a per curiam handing our clients a narrow victory. Reversing a contrary 15-0 en banc holding of the Fifth Circuit, the Court held (without any disagreement) that it was error to grant qualified immunity based on facts unknown to the officer at the time of the incident. The Court also remanded to the lower court to determine in the first instance whether to recognize a damages remedy.

Expressions Hair Design, et al. v. Schneiderman – First Amendment. The Court granted our petition for certiorari on behalf of merchants bringing First Amendment challenges to state “no-surcharge” laws, which criminalize truthful speech by merchants and keep consumers in the dark about the high cost of credit cards. In January 2017, Deepak Gupta argued before the Court on behalf of the plaintiffs challenging New York’s law in this case, and is representing merchants challenging identical laws in California, Texas, and Florida.

In March 2017, the Supreme Court unanimously held that New York’s law is a regulation of merchants’ speech, not conduct. Our efforts are being supported by coalitions of amici curiae national retailers, national consumer groups, First Amendment scholars, behavioral economists, and others. Deepak Gupta is counsel of record, along with Jon Taylor. Coverage at NY Times; AP; Bloomberg; Forbes; Wall Street Journal; FiveThirtyEight; USA Today; Bloomberg View

Rowell v. Pettijohn and Bondi v. Dana’s Railroad Supply – First Amendment. We represent Texas and Florida merchants in these two companion cases to Expressions Hair Design. The Florida Attorney General petitioned from our victory in the Eleventh Circuit over Florida’s no-surcharge law and we filed a petition following the Fifth Circuit’s split decision by the Fifth Circuit upholding Texas’s no-surcharge law. Petition in Rowell | Texas BIO | Reply in Rowell | Petition in Dana’s | Response in Dana’s | Coverage at Daily Business Review

State of Ohio v. Moore — Juvenile Justice, Eighth Amendment. In this case, Rachel Bloomekatz is counsel of record for the respondent, Brandon Moore, who was sentenced at the age of 15 to serve a series of consecutive sentences totaling 112-years, leaving him with no possibility of parole until he is 92. In a major victory for juvenile justice, Rachel successfully argued before the Ohio Supreme Court that these functional life sentences for juveniles violate the Eighth Amendment under the Supreme Court’s 2010 precedent, Graham v. Florida. We are opposing Ohio’s petition for certiorari in this case. Brief in Opposition

Chevron v. Donziger – International Comity, Environmental Justice, Federal Jurisdiction, RICO. In an unprecedented effort to collaterally attack an $8.6 billion Ecuadorian judgment holding it accountable for decades of pollution, Chevron brought a RICO action in New York against Amazon rainforest communities and their advocates. Deepak Gupta served​ as lead appellate counsel to U.S. lawyer Steven Donziger, the principal defendant in the RICO case. While more than 40 nongovernmental groups have condemned Chevron’s retaliatory tactics in the case—which have broad implications for international comity, corporate accountability, and the rule of law—the Second Circuit affirmed the district court’s unprecedented decision in this case. In March 2017, we filed a petition for a writ of certiorari, asking the Supreme Court whether federal courts have jurisdiction to hear this kind of preemptive collateral attack on a money judgment issued by a foreign court, and whether RICO authorizes injunctive relief for private parties. Petition for Certiorari | Reply

Raymond Armstrong, et al. v. National Football League, et al. – Class Actions. We represent a group of 31 former professional football players who are challenging the global class-action settlement of claims that the NFL deliberately hid the long-term dangers of concussions. The settlement omits future compensation for those who suffer from CTE (chronic traumatic encephalopathy)–the most serious neurological condition suffered by football players. Our petition asks the Court to weigh in, for the first time in nearly two decades, on the adequacy-of-representation standards necessary to protect groups of plaintiffs with divergent interests in class settlements. Petition for Certiorari | Reply | Amicus Briefs: 135 Former NFL Players | Public Citizen | Brain Injury Association

Bell v. Blue Cross and Blue Shield – Healthcare, Preemption. This case, centered on a preemption clause in the Federal Employee Health Benefits Act, implicates fundamental questions about federalism and agency power. Matthew Wessler serves as lead counsel to the petitioners in this case, which concerns whether terms in insurance contracts between the federal government and private insurers preempt state laws prohibiting insurers from bringing repayment claims against tort victims. Petition for Certiorari

Bank of America v. City of Miami; Wells Fargo v. City of Miami — Civil Rights. In this case, we filed a brief on behalf of a group of the National League of Cities, the U.S. Conference of Mayors, and other nonprofits. The case centers on the standing requirements for cities and other local governments who sue banks for discriminatory lending practices. Our brief provided the court with contemporary empirical evidence to explain how the economic effects of discriminatory lending practices–including reduced property-tax revenue and increased demand for city services–injure local governments in ways that give rise to standing to seek redress under the Fair Housing Act. Brief of National Association of Counties, et al.

Sergeants Benevolent Health and Welfare Fund v. Sanofi-Aventis U.S. LLP — RICO, Healthcare, Consumer Fraud. We represented health-insurance plans in this case alleging that a drug manufacturer, Aventis, misled doctors about the safety of the prescription antibiotic Ketek to boost the drug’s sales. The Second Circuit, in conflict with the First and Third Circuits, held that doctor’s prescribing decisions break the chain of causation between a manufacturer’s fraud and the purchaser’s injury. Matt Wessler is counsel of record for the plaintiffs in the Supreme Court. Petition for Certiorari | AARP et al. | Reply

Triple Canopy v. United States ex rel. Omar Badr – False Claims Act. Triple Canopy, a defense contractor, was responsible for providing security services at Al Asad Airbase, the second largest airbase in Iraq. The company defrauded the government out of millions of dollars by hiring over 300 Ugandan guards who were completely unqualified for the task—even going so far as to falsify records to obscure the fact that the guards could not shoot straight. We represent Omar Badr, a decorated veteran and former Triple Canopy employee, who blew the whistle on this fraud. The company is asking the Supreme Court to hear the case to consider whether “implied certification” is a valid theory of liability. Deepak Gupta is counsel of record. Petition for Certiorari | Brief in Opposition

Sheriff v. Gillie — Fair Debt Collection Practices Act. In this case, Ohio residents challenged debt-collecting law firms’ misleading practice of using Attorney General letterhead to collect debts owed to the state. We filed an amicus brief on behalf of three consumer-advocacy groups—the National Consumer Law Center, the National Association of Consumer Advocates, and Public Good—arguing that the conduct of the private lawyers constituted clear violations of the Fair Debt Collection Practices Act. We challenged the petitioners’ attempts to raise the bar for proving liability under the FDCPA, pointing out the important consumer-protection value of existing standards. Brief of Consumer-Advocacy Groups

Friedrichs v. California Teachers Association – Workers’ Rights, Public-Sector Unions. We filed an amicus brief on behalf of Montana Governor Steve Bullock in this major Supreme Court challenge to public-sector unions. In this case, a group of California teachers have challenged the agency-fee system, which requires employees in a bargaining unit to pay for the union’s collective-bargaining activities—eliminating a major free-rider problem, but allowing workers to opt out of supporting union political activities. Our brief traced Montana’s unique labor history, providing the Court with evidence of how a collective-bargaining system that relies on agency fees has helped ensure labor peace and secure public services. Brief of Governor of Montana

Tyson v. Bouaphakeo — Workers’ Rights, Class Action. In this Fair Labor Standards Act case, we filed an amicus brief supporting the respondents—workers seeking overtime pay at a Tyson Foods slaughterhouse—on behalf of a group of organizations that stand up for low-wage workers. Tyson has asked the Court to significantly raise the bar class-action plaintiffs must meet to move forward with their suits. Tyson initially urged the Court to take the case to decide whether plaintiffs must prove injury to all class members from the very first stages of a suit. Now, it asks the Court to create a different hurdle for class-action plaintiffs—”some mechanism,” presented at certification stage, to cull uninjured class members. Noting Tyson’s “bait-and-switch” tactics, the firm’s brief argues that the Court should dismiss the writ as improvidently granted. Brief of Nonprofit Organizations | Preview of argument at Alliance for Justice

Smith v. Aegon Companies Pension Plan – ERISA, Venue Selection. There are many federal statutes in which Congress grants the plaintiff the right to choose the venue for suit. This case concerns whether the choice of venue under one such statute, ERISA, may be abrogated by a more restrictive venue-selection clause in an ERISA plan. Six circuits have divided over the enforceability of such venue-selection clauses. We petitioned the Court on behalf of a plaintiff whose choice of venue was frustrated by a clause upheld by the Sixth Circuit. On June 1, 2015, the Court called for the Solicitor General’s views on the petition. Matt Wessler is counsel of record. Petition for Certiorari | Brief in Opposition | Reply

Zwicker & Associates v. Wise – Fair Debt Collection Practices Act. We successfully opposed certioriari in this case brought by a debt-collection law firm. Although the Court had previously held that the FDCPA applies to lawyers who “‘regularly’ engage in consumer-debt-collection activity,” Zwicker & Associates sought immunity for its illegal practice of attempting to recover attorneys’ fees from Ohio consumers. Our opposition argued that Zwicker’s chosen refuge—Noerr-Penningtondoctrine—could not shield the activity of debt collectors. Deepak Gupta and Neil Sawhney represented the respondents as co-counsel with attorney Theodore Meckler. Petition for Certiorari | Brief in Opposition

U.S. Legal Services Group v. Atalaese – Arbitration, Consumers’ Rights. We successfully opposed certiorari in this case. Although disguised as a legitimate law firm, U.S. Legal Services Group is really a part of a “rogue industry” of debt-settlement companies—companies that use pressure tactics to get consumers to pay fees while offering them false hope and leaving them in a worse financial situation. When Patricia Atalese sued the company for taking roughly $5,000 in fees for doing essentially nothing, U.S. Legal invoked its arbitration clause. The New Jersey Supreme Court declined to enforce the clause because it failed to inform consumers that they were giving up their right to sue. Our brief argued that this generally applicable state-law rule is not preempted by federal law and that the courts are not in conflict. New Jersey Supreme Court’s Opinion | Petition for Certiorari | Brief in Opposition

Texas Department of Housing v. The Inclusive Communities Project – Civil Rights. In this major civil rights case, we filed a brief on behalf of current and former Members of Congress, including Senators Walter Mondale (D-MN) and Edward W. Brooke (R-MA), sponsor of the original Fair Housing Act of 1968. Our brief demonstrated that the Fair Housing Act, understood in its proper historical context, was intended to allow claims alleging disparate impact. Justice Kennedy’s opinion for the Court directly adopted our historical material in key passages of his opinion for the Court upholding the Fair Housing’s Act disparate-impact regime. Deepak Gupta and Jon Taylor were counsel for amici. Brief of Current and Former Members of Congress

Spokeo v. Robins — Article III Standing. In this case arising under the Fair Credit Reporting Act, the question is whether the plaintiff identified an Article III injury-in-fact by alleging that the petitioner willfully violated the Act by publishing inaccurate personal information about him in consumer reports, without following reasonable procedures to assure the information’s accuracy. We represented the responded at the certiorari stage and filed the brief in opposition. Ninth Circuit’s Opinion | Petition for Certiorari | Brief in Opposition

Republic of Argentina v. NML Capital Ltd. et al. — Public Finance. We filed a brief on behalf of Nobel-prize winning economist Joseph Stiglitz urging the Court to reverse the Second Circuit’s decision to tie the hands of sovereign governments in their attempts to restructure unsustainable debt. The brief argues that the Second Circuit’s interpretation of the so-called pari passu clause would make sovereign debt restructuring–an essential feature of public debt markets–impossible. The consequences are severe for global economic development, but particularly for developing nations. If creditors and debtors can’t restructure debts made unsustainable because of fiscal or economic shocks, debtor countries will effectively be locked out of public debt markets. Deepak Gupta and Peter Conti-Brown are counsel for Joseph Stiglitz. Brief of Joseph Stiglitz

Township of Mount Holly v. Mt. Holly Gardens Citizens in Action – Civil Rights. We filed a brief on behalf of current and former Members of Congress, some of whom voted in favor of the Fair Housing Act, either when it was enacted in 1968 or when it was amended in 1988—including former Senator Edward W. Brooke (R-MA), the sponsor of the original Act. Our brief demonstrates that the Act, understood in its proper historical context, was intended to allow disparate-impact claims. The brief also explains why constitutional-avoidance principles should play no role. Deepak Gupta and Jon Taylor are counsel for amici. Brief of Current and Former Members of Congress

Charvat v. First National Bank – Article III Standing. We successfully opposed this petition for certiorari raising an unresolved question of Article III standing. The petitioners are two banks who argue that the plaintiff lacks Article III standing to allege violations of the Electronic Funds Transfer Act’s notice requirements on the theory that he alleges a mere “injury in law” rather than an injury in fact. The petition suggest that the case is a replacement for the First American Financial v. Edwards, which was left undecided by the Court last term. Deepak Gupta is lead Supreme Court counsel and successfully argued the appeal in the Eighth Circuit below. Our co-counsel include Tracy Hightower-Henne of Hightower Reff LLC, Omaha, Nebraska, and Michael Lewis of the Lewis Law Firm, Washington, DC. Petition for Certiorari | Brief in Opposition | Petitioner’s Reply | Eighth Circuit Opinion

Irizarry v. Catsimatidis (Torres v. Gristede’s)– Workers’ Rights. We were retained to represent the respondents in this Fair Labor Standards Act case, along with Justin Swartz, Adam Klein, and Molly Brooks of Outten & Golden in New York. Deepak Gupta successfully argued the appeal in the Second Circuit below, obtaining a decision holding that New York billionaire John Catsimatidis is personally liable — as an “employer” under the Act — for millions of dollars in wage-and-hour violations to a class of workers at a chain of grocery stores that he owns. We successfully defeated the petition for certiorari. Castimatides is represented by Jonathan Hacker of O’Melveny & Myers LLP. Petition for Certiorari | Brief in Opposition | Petitioner’s Reply | Second Circuit’s Opinion

Keiran v. Home Capital, Inc. and Sobieniak v. BAC Home Loan Servicing – Consumers’ Rights. We filed a petition for certiorari raising an important and recurring question concerning the timing of rescission suits under the Truth in Lending Act — a question on the circuits are hopeless divided. The question is whether a consumer exercises the right of rescission by providing written notice to his or her lender within three years (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer is also required to file a lawsuit within that three-period to exercise the right (as the Eighth, Ninth, and Tenth Circuits have held). Deepak Gupta is lead counsel for petitioners. Petition for Certiorari

Geneva-Roth Ventures v. Kelker – Arbitration, Consumers’ Rights. We represented the respondents in this case, brought against a company that makes payday loans online at an effective annual interest rate as high as 1,365%. In the decision below, the Montana Supreme Court refused to the send usury allegations against the online lender to arbitration. The case was considered a high risk for summary reversal by the U.S. Supreme Court. Deepak Gupta served as lead Supreme Court counsel. After we filed our brief in opposition, we worked with trial counsel John Heenan to obtain a favorable class settlement under which the lender agreed to withdraw its petition for certiorari on December 6, 2013 — the very morning that the Justices were scheduled to vote on the petition. Under the settlement, to which the Montana Attorney General is a party, the company will stop making its usurious loans to Montanans, forgive debts of previous customers in the state, and make substantial refunds. Petition for Certiorari | Brief in Opposition | Stipulation and Order of Dismissal

Edmonson v. Lincoln National Life Insurance Company – ERISA. We were retained to represent the petitioner in this case concerning the treatment under ERISA of “retained asset accounts,” arrangements offered by some life-insurance companies under which a beneficiary’s death benefit is not immediately paid in a lump sum; instead, the insurance company retains the funds and issues the beneficiary a checkbook associated with an empty account. Petition for Certiorari

American Express v. Italian Colors Restaurant – Arbitration, Antitrust. We were retained to serve as counsel to the plaintiffs/respondents in the U.S. Supreme Court in this major arbitration case, concerning whether courts must enforce arbitration even when doing so would preclude the plaintiffs from vindicating their federal statutory rights. Deepak Gupta was retained as lead counsel at the certiorari stage and co-counsel at the merits stage along with Paul Clement of Bancroft PLLC. Our other co-counsel included Gary Friedman and Tracy Kitzman of Friedman Law Group; Reinhardt Wendorf & Blanchfield; and Patton Boggs LLP. The firm coordinated amicus briefs in support of the respondents filed by the United States, 22 States, and various scholars, trade groups, and public interest organizations.

McBurney v. Young – Constitutional Law, Freedom of Information. We were retained to serve as lead counsel for the petitioners in the U.S. Supreme Court in this case, a constitutional challenge under the Privileges and Immunities Clause and dormant Commerce Clause to a provision of the Virginia Freedom of Information Act denying non-residents the same right of access to public records that Virginia affords its own citizens. Deepak Gupta filed the firm’s successful petition for certiorari and argued the case before the Supreme Court in February 2013. The firm was co-counsel with the faculty and students of Georgetown Law’s Institute for Public Representation, which initiated the case in the courts below.

Zinni v. Convergent Outsourcing – Federal Jurisdiction, Consumers’ Rights. We successfully opposed a petition for certiorari in this case, concerning mootness issues in consumer class actions. In March 2013, we filed our brief in opposition on the following question: Does a defendant’s informal, unaccepted offer to settle a plaintiff’s claims deprive a federal district court of jurisdiction to decide those claims, where the defendant has neither tendered the offered settlement amount nor agreed to entry of an enforceable judgment? In April 2013, we filed a supplemental brief addressing the Supreme Court’s recent decision in Genesis Healthcare. Greg Beck was counsel of record in the Supreme Court and also successfully briefed and argued the case in the Eleventh Circuit below. Our co-counsel were Scott Nelson and lead trial counsel Don Yarbrough. Convergent’s Petition for Certiorari | Zinni’s Brief in Opposition | Convergent’s Supplemental Brief| Zinni’s Supplemental Brief | Circuit’s Opinion